Dispute Resolution doing business in China

Rapid change has taken place in China since 1978 when Deng Xiao Ping led plans to re-establish a judiciary and a legal system. Since then, there has been a systematic attempt to legislate in all areas and to create and promote a judiciary and legal profession – now 150,000 strong – for the country’s population of 1.3bn.

What can a foreign party expect in relation to dispute resolution when doing business in China? If a dispute arises, negotiation is the best initial method of resolution. Most business contracts in China will include a clause requiring negotiation before other dispute settlement mechanisms are pursued. Negotiation might require attempts to enlist the help of local government officials by emphasising the importance of the foreign company’s investment.

If negotiation fails, it is arbitration that has for many years been the preferred method of resolution for foreign-related commercial disputes in China. Arbitrators have, at least until recently, been more experienced and better qualified in the subject matter than judges, and procedures have been more flexible and predictable. Arbitration also has the advantage of finality, in that awards are not subject to appeal whereas court rulings may result in a lengthy appeal process. Continue reading Dispute Resolution doing business in China

Alternative dispute resolution in IT matters, in UK

Daniel Djanogly was interviewed by ITweek, UK about experts in alternative dispute resolution are a popular way to resolve disputes between conflicting parties in technica cases:

So what exactly is expert determination and how does it differ from other methods?

This is one of a number of private dispute resolution methods collectively referred to as alternative dispute resolution (ADR). Other ADR methods include arbitration and mediation.

In expert determination an independent expert is asked by the disputing parties to decide one or more issues between them. The experts are required to use their knowledge and experience to reach a decision based on their own investigation of the issues. The experts must act fairly and the parties must agree to be bound by the decision.

In England and Wales arbitration is supported and controlled by the Arbitration Act 1996, which supports the enforceability of arbitration awards locally and internationally. There is no similar statutory involvement in expert determination.

In arbitration, fairness is formalised by the Arbitration Act. The arbitrator can only undertake an investigation if permitted by the parties and must share the results with the parties. Unlike the arbitrator, the expert is not immune from actions for negligence. In mediation, the mediator helps the parties arrive at their own settlement.

Are there particular types of dispute that suit expert determination?

Expert determinations tend to be applied to technical disputes. The expert is usually chosen for their expertise. The types of dispute for an accountant acting as expert include: share/business valuation disputes; disputes in relation to completion accounts; deferred consideration disputes following a sale of a business; profit share disputes in partnerships and joint venture agreements; and disputes about the loss of profits from breach of contract.

There can be numerous subsidiary disputes in connection with facts and the interpretation of words, which may be outside the expertise of the expert.

Together with other procedural considerations, the expert may need to agree arrangements to enable these matters to be dealt with in a way that does not lead to the validity of his award in respect of the substantive issue(s) being undermined.

How are appointments as expert made and what happens if no agreement can be reached?

A dispute resolution clause may be included in a contract, for example in a sale and purchase agreement for a company, which requires that an expert is appointed to resolve the dispute by expert determination.

If the parties to the agreement have not named the expert, or they are unable to agree on an expert, the contract may provide that the appointment is made by the president of a particular professional body from among its members.

Alternatively, there may be no pre-existing contractual provision for the appointment of an expert to determine the dispute. The parties may decide to use expert determination to solve the dispute.

How does the whole process work and what can the parties expect in terms of fees?

The initial stage of an expert determination assignment involves completion of the engagement formalities and agreement of the expert’s powers. The expert will check whether these are sufficient and, if not, seek to agree those necessary to fulfil their mandate. Continue reading Alternative dispute resolution in IT matters, in UK

Online Dispute Resolution in India

The aim of this article is to analyse the prospective use of online dispute resolution mechanism (ODRM) in India. The necessity of the same has arisen due to the growing use of alternative dispute resolving mechanism (ADRM) in India to reduce the burdening of the already overburdened courts in India. The popularity and use of ADRM is increasing but it can achieve its best only if the same is integrated with the information technology.

I. INTRODUCTION

The swift growth of e-commerce and web site contracts has increased the potential for conflicts over contracts which have been entered into online. This has necessitated a solution that is compatible with online matters and is netizens centric. This challenging task can be achieved by the use of ODRM in India. The use of ODRM to resolve such e-commerce and web site contracts disputes are crucial for building consumer confidence and permitting access to justice in an online business environment. These ODRM are not part and parcel of the traditional dispute resolution machinery popularly known as judiciary but is an alternative and efficacious institution known as ADRM. Thus, ADR techniques are extra-judicial in character. They can be used in almost all contentious matters, which are capable of being resolved, under law, by agreement between the parties. They have been employed with very encouraging results in several categories of disputes, especially civil, commercial, industrial and family disputes. These techniques have been shown to work across the full range of business disputes like banking, contract performance, construction contracts, intellectual property rights, insurance, joint ventures, partnership differences etc. ADR offers the best solution in respect of commercial disputes. However, ADR is not intended to supplant altogether the traditional means of resolving disputes by means of litigation. It only offers alternatives to litigation. There are a large number of areas like constitutional law and criminal law where ADR cannot substitute courts. In those situations one has to take recourse of the existing traditional modes of dispute resolution. Continue reading Online Dispute Resolution in India

European Commission Consultation on Legal Problems in e-Business

The e-Economy has become a wide-ranging phenomenon, cutting across geographical boundaries and industry sectors with the potential to further boost the Internal Market in the form of economic growth, investment, innovation and job creation.

As a follow-up to the eEurope 2005 Action Plan and the conclusions of the European Council of 20/21 March 2003 stressing the need for exchanging experience in the field of e-business, the European Commission, Directorate General Enterprise, would be interested in your experience as an enterprise doing e-business. The objective is to collect feedback and practical experiences from the market and to identify still existing practical barriers or new legal problems encountered while conducting business electronically. Continue reading European Commission Consultation on Legal Problems in e-Business

European Commission Public Hearing on ADR – Brussels, 21 February 2003 –

The European Commission presented on 19 April 2002 a Green Paper on Alternative Dispute Resolution in civil and commercial law.

Many organisations expressed they interest in this Green Paper. Most of they have directly participated in the debate launched by the Green Paper, by submitting comments on it. The European Commission would like to thank them for they contribution. Continue reading European Commission Public Hearing on ADR – Brussels, 21 February 2003 –

Basis for the Harmonisation of Online Arbitration

Online Dispute Resolution News ODR_Moderator writes “E-Arbitration-T ? have issued a proposal for the Harmonisation of Online Arbitration

This paper aims to be a basic overview of the issues that Online Arbitration raises when dealing with B2B transactions.

Summary of Questions Submitted for Discussion:

Question 1: What is your opinion on the general approach that the EU institutions should follow on ODR and Online Arbitration of B2B transactions? Should the initia-tives be limited to B2B transactions?

Question 2: Do you think that a directive is the most appropriate regulatory instrument to deal with e-commerce issues? And to deal with ODR methods? Do you think that the European Primary Law provides the EU with a legal basis to adopt a directive on ODR methods?

Question 3. Could or should the principles set out in the two recommendations apply indiscriminately to fields other than consumer protection? Of the principles enshrined in the Recommendations, which in your view could be incorporated in the legislation of Member States?

Question 4: Do you think that the EU should follow the Uncitral Model Laws, or should it leave the regulation of Online Arbitration disputes to national laws?

Question 5: What is your opinion on the controversial issues highlighted in section 7? Are they controversial at all? Is this a fictitious debate? What option would you adopt, if any, to solve the inconsistencies? What other alternatives would you propose?

Question 6: Do you think that this is an appropriate time to pass a directive on ODR methods? Would you be in favour of a directive on ODR methods? What are, in your opinion, the legal bases, if any, for a directive on ODR methods?

Question 7: Do you think that the adoption of European standards for Online Arbitration technologies is necessary? Do you think that the EU has the human and technical resources to dictate European Standards without public discussion? Would it be wise to create an interdisciplinary group capable of negotiating standards with other geo-graphic regions?
Continue reading Basis for the Harmonisation of Online Arbitration

Forensic Systems Analysis for IT Arbitration

Disputes over failed software construction projects raise interlinked technical and legal issues which are complex, costly, and time-consuming to unravel ? whatever the financial size of the claims and counterclaims, the facts and circumstances of the contract between the parties, or the conduct of the software development.

CASTELL Consulting has been involved internationally as Expert, Mediator and Arbitrator in a wide variety of disputes and substantial legal actions over contracts which are terminated, with the software rejected amidst a considerable range and variety of allegations expressed by both supplier and customer. These include allegations of incomplete or inadequate delivery, software or database errors, faulty design, operational or performance deficiencies, shifting user or business requirement specifications, poor project management, delays and cost over-runs. Continue reading Forensic Systems Analysis for IT Arbitration